New Jersey and New York have joined a growing trend of states that have recently passed or are seeking to pass laws affording greater protections for victims of domestic violence. As the national movement focused on strengthening protections for victims of domestic or dating violence grows, so too do employer obligations to provide time off from work or some form of leave to obtain counseling and/or protective orders, seek medical care, or attend to legal proceedings.
New Jersey Employers Take Note:
Governor Chris Christie recently signed into law the “New Jersey Security and Financial Empowerment Act” or “NJ SAFE Act,” which will go into effect on October 1, and applies to employers with 25 or more employees. This law mandates that an eligible employee who is a victim of domestic or sexual violence, or whose child, spouse, civil union partner, domestic partner, or parent is such a victim, be given 20 days of unpaid leave within a 12-month period, to be used in the 12-month period following any incident of domestic or sexual violence. Each such incident constitutes a separate offense that entitles the employee to unpaid leave, provided the employee has not exhausted his/her 20 days for the 12-month period.
The leave may be taken intermittently and may be used for the following activities related to the occurrence of domestic or sexual violence, whether suffered by the employee or his/her qualifying family member:
- Seeking medical attention for, or recovering from, physical or psychological injuries;
- Obtaining services from a victim services organization;
- Obtaining psychological or other counseling;
- Participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the victim’s safety;
- Seeking legal assistance or remedies, including preparing for or participating in a civil or criminal legal proceeding related to or derived from domestic or sexual violence; or
- Attending, participating in, or preparing for a criminal or civil court proceeding relating to an incident of domestic or sexual violence.
Employees must provide written notice of their need for leave as far in advance as is reasonable and practical under the circumstances, provided the need for leave is foreseeable, and employers may require certain types of documentation to support the leave. An approved notice of employees’ rights and obligations under the Act must be posted in a conspicuous location.
The NJ SAFE Act also prohibits covered employers from discriminating or retaliating against employees who received or requested protected leave. Employees aggrieved under the Act can bring a civil action, and available relief includes a civil fine, injunction, reinstatement, lost wages, and reasonable costs and attorney’s fees.
New York Employers Stay Tuned:
In New York, a bill has been introduced to provide even more generous leave — 90 days of job-protected leave — to victims of domestic or sexual violence (which includes any sexual offense or stalking). If enacted, employers would be required to provide an employee who is a victim of domestic violence with 90 days of unpaid leave during any 12-month period so that the employee can address the effects of the domestic violence, whether to seek medical care, secure legal assistance, or attend some form of counseling or therapy. Upon return from the leave, the employee would need to be be restored to the same or an equivalent position and may not lose any benefits accrued before the start of the leave. The bill likewise prohibits employers from discriminating or retaliating against employees for taking leave.
This proposed legislation would build upon protections already granted to victims of domestic violence in New York. Under both the New York State Human Rights Law and New York City Human Rights Law, victims of domestic violence are a protected class. They may not be discriminated against on account of their status as victims of domestic violence (and under City law, on account of their perceived status as such victims).
New Jersey and New York employers, like employers in many other states, should be mindful of this developing area of the law. To minimize the risk of potential liability, employers need to carefully assess and, if necessary, update their policies and practices to account for their growing legal obligations with respect to domestic violence victims. Employers should also ensure that their managers are thoroughly trained to understand the various obligations employers have to provide leave and reasonable accommodations to employees who are victims of domestic violence, and that they understand the interplay between these state laws and the various federal statutes at issue, whether it be the Family and Medical Leave Act, the Americans with Disabilities Act, or Title VII.